“Backwards and In High Heels”

Ginger Rogers “did everything Fred Astaire did, only backwards and in high heels.”

— Frank and Ernest

I did not attend the July 13, 2018 Vermont Bar Association Trial Academy program that has generated controversy about comments that were made about what is — and is not — appropriate attire for women attorneys in Vermont courts. But I have read about it, including three stories in the Burlington Free Press: Vermont Prosecutor Pushes Back on Talk of Dress Code,  Vermont Prosecutor Incensed by Women’s ‘Court Attire’ Discussion, and Lawyers’ Group: Speakers ‘Tone Deaf’ on Attire.

In a letter to the VBA posted on Facebook, Washington County Deputy State’s Attorney Ashley Hill says that “Women were admonished several times not to wear bright colors and not to wear heels that are too high, while another male presenter discussed how to select the proper courtroom tie and how important it can be to ask one’s wife for input about court attire[.]”

As I wasn’t there, I don’t exactly know what was said, nor do I know the context within which the remarks were made. But I certainly agree with Hill when she says: “I just don’t think that what someone wears for clothing, or what color hair they have, or what color lipstick has any intrinsic bearing on their worth as a person — let alone their worth as a professional[.]”

And I would go further than Above The Law Editor Kathryn Rubino, whose post on this subject is entitled: Maybe Male Attorneys Should Stop Telling Female Attorneys What To Wear: Yeah, That’s Pretty Insulting. I, for one, would not tell women attorneys what they should wear in court.

But that is not because I don’t believe that it is an issue. It is an issue for all attorneys. But it is of marginal importance.

Women lawyers do face implicit bias from some other lawyers and from some judges. In fact, I have seen women lawyers face explicit bias.

That said, the times are changing. The U.S. Department of Labor tells us that nationwide 37.5% of all lawyers are women. Not so long ago, the number of women in the profession was infinitesimal. By the time I started law school, in 1975, a substantial portion of our class at Albany Law School were women. I understand that four years before, only 3 students — out of a class of nearly 250 — were women. It is clear that women are far more accepted in the profession than they were 40 years ago.

But back to my real point: How lawyers present themselves matters. It particularly matters in court. I have talked with enough former jurors to know that they take seriously the instructions judges give them not to discuss the case before deliberations begin. But jurors do talk. And since they can’t talk about the case, they talk about the lawyers. That talk is not limited to what the lawyers are wearing. Much of it is about what the lawyers are like and how they are performing. But what they are wearing is certainly a topic, and some jurors may take offense if they think a lawyer’s appearance does not show appropriate respect for the process.

Some juror feedback is just stunning. For example, in one set of post trial interviews, not one but two, jurors were critical of a class ring that I wore. They thought it was “elitist.” I was shocked because the class ring in question was from my high school, a Vermont parochial school that is by no means a selective or elite institution.

But that fact did not really matter. It was not whether I actually went to an elite school that mattered. What mattered was that it was perceived that I had done so and that some jurors held it against me. By the way, the ring is question was not huge, nor otherwise particularly noticeable. But some jurors were attentive even to such a small detail.

Fortunately, such issues are of only minor importance. Although some jurors did not like my ring, I won my case. Most cases are decided as they should be, on the facts and the law. There is only so much that lawyers can do to wield these weapons for the benefit of our clients. But we are hired to do what we can. And we should line up what we can control in order to win. 

So, I stopped wearing the ring. I still have it. I still like it. But I don’t normally wear it, lest I forget and let it become an issue.

Still, I would not purport to tell women lawyers what to wear or not to wear. I don’t think I know enough to give good advice. And as for the advice at the VBA program, one of my former law partners, now a judge, usually wore brightly colored clothes and heels. She was very successful.

I do make some effort to know what I should wear. We do focus groups in preparing significant cases for trial, and I wear the same kind of clothing (and accessories) that I would wear at trial. We certainly do ask focus group jurors what they think of the lawyers who have presented to them. They rarely mention what the that lawyers are wearing, and that’s a good thing. When they do, we listen.

We do give our clients advice on what to wear to court. It is intentionally vague. We tell them to wear what they wear to church. If they don’t attend church, we tell them to wear what they would imagine they would wear if they were going to church. This encourages clients to wear something that is respectful, but genuine.

As it was for Ginger Rogers, I think women lawyers have a higher bar. And I think it makes sense for all of us to pay attention to whatever stands in the way of achieving our goals, but to do so in a way that allows each of us to build integrity and self-respect.

Rich

2 Replies to ““Backwards and In High Heels””

  1. I did not attend the VBA Trial Academy, either. Not being a subscriber to the Burlington Free Press, I hadn’t even heard of this controversy until seeing it here. So, from that base of admitted ignorance, let me toss my two cents in.

    There is a very good reason why appellate courts refrain from substituting their judgments about facts for those of the jury — the proceedings conveyed as mere words on paper are grossly insufficient. Whether a juror believes a witness’s testimony is dependent on so very much more than the words that are spoken, and just what those contributing factors are and how important they are changes from moment to moment. Sweat suddenly appearing on the witness’s forehead, or eyes dashing left and right, are not recorded. An article of clothing, or jewelry, could potentially affect credibility. It is alchemy.

    I presume that the name “Trial Academy” was not chosen accidentally. It sounds to me like a seminar geared to coaching lawyers how to be most effective at trial. A lawyer’s conduct and appearance are an integral part of how jurors perceive and respond to the proceedings. It’s probably not a huge part, but nonetheless large enough that it might be significant in a close case.

    I am guessing that the individuals who offered counsel on how a lawyer should dress for trial was the product of such concerns. Perhaps it was not stated as well as it could have been. I don’t know, because all that is provided about what was said is the generalized complaint in Ashley Hill’s letter.

    But a lawyer would do well to remember that the case being tried is not her case — it belongs to her client. A lawyer who objects that she can dress however she damn well feels and who disregards the seemingly infinite factors that affect credibility would seem to me to be a lawyer who puts herself first and her client second.

    I object.

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